Sunday, 16 August 2009

AREN’T EXISTING ZAMBIAN MEDIA LAWS ENOUGH?

By Gershom Ndhlovu

It is difficult to understand on what basis the government wants to enact a law to regulate the media. This difficulty arises due to the fact that there are enough laws on statute books that do so and some, if not most, of them pre-date Zambia’s independence in 1964.

Vice president George Kunda recently told journalists at a meeting with media organisations representatives that the media should give government a framework of their proposed self regulation failure of which would force government to enact its draft law to regulate the media.

The government appears to be motivated to change the law because of the privately owned The Post newspaper which always seems to find fault with President Rupiah Banda and his government and accuses the paper of “twisting” facts. Matters recently came to a head when ruling party supporters resorted to beating up Post journalists and those from other media organisations who failed to produce identification cards.

In his determination to cripple The Post, President Banda ordered the arrest of Post News Editor, Chansa Kabwela for sending a picture of a woman giving birth outside the University Teaching Hospital, the biggest hospital in Lusaka, at the height of a debilitating strike by medical and paramedical staff countrywide.

But for those who followed media and related laws in Zambia know that, first and foremost, the Zambian Constitution’s Part 3 on the Protection of Fundamental Rights and Freedoms of the Individual guarantees the protection of freedom of expression.

Article 20 of the Zambian Constitution of 1996 provides that”(1) Except with his own consent, a person shall not be hindered in Protection of the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.

“(2) Subject to the provisions of this Constitution, a law shall not make any provision that derogates from freedom of the press.

“(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision- (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or

(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or the registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television; or

(c) that imposes restrictions upon public officers; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.”

Going by the above article, the Constitution protects against passing legislation that has the potential to take away freedom of expression and, as such, the passage of the proposed law announced by government through Mr Kunda would clearly contravene the supreme law.

Anyone aggrieved by the media by way of reportage can fall back on the Defamation Act Cap 68 through civil courts. The Act provides in Section 3 that:

“In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”

The Act also states what defence those sued for defamation can give, notably justification and fair comment.

The government and the Media Ethics Council of Zambia (MECOZ), under the present circumstances in which there is heightened acrimony between the government and certain media organizations, should publicize and encourage the use of this Act. There would be no better regulation than the use of the Act for erring media organisations to be taken to court.

Ironically, it is the delays of the dispensation of justice in the courts of law under this Act that the formation of MECOZ was mooted because media practitioners who gathered at Andrews Motel in Lusaka in 1998, felt that defamations cases took very long to be determined in the courts of law. With the establishment of MECOZ, it was hoped, adjudication would be done quicker outside courts. Whether MECOZ, which The Post has refused to be part of, is doing that or not is something else.

The government equally has recourse to Cap 87, the Penal Code Act which, among other things, provides under section 191 that “any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed "libel".”

Section 192 states that defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation. It is immaterial whether at the time of the publication of the defamatory matter the person concerning whom such matter is published is living or dead. There is a proviso, though, that prosecution of libel relating to a dead person, consent must be given by the Director of Public Prosecutions.

Section 193 further states that “(1) A person publishes a libel if he causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed, to be dealt with, either by exhibition, reading, recitation, description, delivery, or otherwise, so that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person.

“(2) It is not necessary for libel that a defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances, or partly by the one and partly by the other means.”

Again, it is difficult to understand why and how the government is hesitant to apply the law when some of its officials feel that newspapers, radio and TV stations, and indeed, other means of communication are deemed to be committing libel.

Cap 161 Printed Publications states that no person shall print or publish, or cause to be printed or published, any newspaper until there has been registered at the office of the Director (of the National Archives) at Lusaka the full and correct title thereof and the full and correct names and places of abode of every person who is or is intended to be the proprietor, editor, printer or publisher of such newspaper, and the description of the premises where the same is to be published.

Any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine not exceeding three thousand penalty units.

There is equally Cap 111, the State Security Act which spells out sanctions for communicating information prejudicial to the safety or interests of the Republic. Most of the offences under this Act carry a minimum term of 25 years.

What better means of regulation can anyone talk about if not the laws stated above and a myriad others that need to be unearthed? Is the new law going to proscribe lawyers, accountants, teachers and ordinary citizens who have no formal journalism training from expressing themselves through the media, or for that matter, owning media companies? Does the government want people to apply for accreditation to perform what is guaranteed them in the Constitution?

I suppose that Mr Kunda, Ronnie Shikapwasha, the minister of information and broadcasting as well as the executives at MECOZ would do well to look at existing laws instead of going through the expensive motion of making new ones which will fall into disuse at some point or other.

5 comments:

Great stuff Gershom! As analog media formats fade in the digital age, this disconnect between the government desire to prevent circulation of dissenting opinions and their actual ability to do so will only increase. With modern communications networks, it is terribly easy for dissenting opinions to be retransmitted into the Zambian infostream anonymously from any number of overseas locations. In other words, the eventual result of attempts to enforce the type of censorship the government apparently feel entitled to will be to render an increasing amount of dissenting expression untraceable, but it will not eliminate it. Had Chansa Kabwela had any inkling of the draconian reaction her transmission of photos of the tragic stillbirth would bring, she could easily have arranged for them to be anonymously delivered to the same persons via some re-mailer in Finland or elsewhere. Does the Zambian government really want to follow in the Iranian footsteps on this issue? The old tricks won't work as well anymore.

Great piece Gersh. Even if I have only seen it one year after publication it is still relevant and let me add my comments. I smell an elitist agenda across the region here. It very much looks like politicians in one of their SADC summits sat down to plot a strategy to shut media up. This Media tribunal thing is suddenly an appendage of adequate defamation and libel legislation all over the SADC region. Why? The media is being targeted by an elite leadership wanting to hide a lot of muck in maintaining clean images they patently do not possess and who are not prepared to be viewed as being the same as any other citizen, if not worse.

Nearly every SADC country now has a Media Tribunal or wants to have one. Looking over their populace, the politicians have created a them and us scenario with the journalists. They are trying to isolate journalists from the larger fabric of society when media is inherently intertwined with democracy. If they understood and genuinely took oath to protect the democracy they claim to be presiding over, politicians would be the first to demand that media be free. It is so as to ensure democracy.

When in Western style democracy it is said the media is the Fourth estate naive and parochial politicians identify this as some fourth wing of governance that should be targetted for reprimand as it is in competition with them. However, the Fourth estate arises only out of the understanding that for the Executive, Legislative and Judicial wings to carry out the functions of cross-checking each other as is necessary in this style of democracy, there has to be an atmosphere of freedom of speech. There is no fourth estate as a separate wing of governance. That’s why it is not headed by anyone unlike the other three wings!

Once the executive(or any other wing) start targetting media for punishment they are admitting that they dont want freedom of speech. When that is absent so is democracy. Politicians who genuinely believe in this type of democracy and want it to prevail would naturally want to protect a neccessary component of it. They would therefore ensure noone tampers with freedom of speech.

But here we are as journalists, isolated as enemies of the state and left to fight a philanthropic battle as if free speech was confined only to us. It is not, and all citizens and institutions should stand up to defend it otherwise politicians should openly state that they are abandoning Western style democracy for some other autocracy.Its good you have pointed out that the Zambian Constitution guarantees the protection of freedom of expression. However, throughout the region, there is always a tendency for politicians to get what they want constitution or nor constitution. To guard ourselves from self serving power-seekers, shouldn’t we perhaps have a Constitutional court that citizens can resort to if and when laws are passed (or action is done) that go against the grain of the constitution or is out Supreme Court relevant enough? Just as much as I suspect politicians plotted this attack on journalists I think we journalists in the region should plot a strategy to fight back. We should look at strengthening our own ethics monitoring systems and create ombudspeople with some esteem. We perhaps need to approach this regionally.

Great piece Gersh. Even if I have only seen it one year after publication it is still relevant and let me add my comments. I smell an elitist agenda across the region here. It very much looks like politicians in one of their SADC summits sat down to plot a strategy to shut media up. This Media tribunal thing is suddenly an appendage of adequate defamation and libel legislation all over the SADC region. Why? The media is being targeted by an elite leadership wanting to hide a lot of muck in maintaining clean images they patently do not possess and who are not prepared to be viewed as being the same as any other citizen, if not worse.

Nearly every SADC country now has a Media Tribunal or wants to have one. Looking over their populace, the politicians have created a them and us scenario with the journalists. They are trying to isolate journalists from the larger fabric of society when media is inherently intertwined with democracy. If they understood and genuinely took oath to protect the democracy they claim to be presiding over, politicians would be the first to demand that media be free. It is so as to ensure democracy.

When in Western style democracy it is said the media is the Fourth estate naive and parochial politicians identify this as some fourth wing of governance that should be targetted for reprimand as it is in competition with them. However, the Fourth estate arises only out of the understanding that for the Executive, Legislative and Judicial wings to carry out the functions of cross-checking each other as is necessary in this style of democracy, there has to be an atmosphere of freedom of speech. There is no fourth estate as a separate wing of governance. That’s why it is not headed by anyone unlike the other three wings!

Once the executive(or any other wing) start targetting media for punishment they are admitting that they dont want freedom of speech. When that is absent so is democracy. Politicians who genuinely believe in this type of democracy and want it to prevail would naturally want to protect a neccessary component of it. They would therefore ensure noone tampers with freedom of speech.

But here we are as journalists, isolated as enemies of the state and left to fight a philanthropic battle as if free speech was confined only to us. It is not, and all citizens and institutions should stand up to defend it otherwise politicians should openly state that they are abandoning Western style democracy for some other autocracy.Its good you have pointed out that the Zambian Constitution guarantees the protection of freedom of expression. However, throughout the region, there is always a tendency for politicians to get what they want constitution or nor constitution. To guard ourselves from self serving power-seekers, shouldn’t we perhaps have a Constitutional court that citizens can resort to if and when laws are passed (or action is done) that go against the grain of the constitution or is out Supreme Court relevant enough? Just as much as I suspect politicians plotted this attack on journalists I think we journalists in the region should plot a strategy to fight back. We should look at strengthening our own ethics monitoring systems and create ombudspeople with some esteem. We perhaps need to approach this regionally.

Great piece Gersh. Even if I have only seen it one year after publication it is still relevant and let me add my comments. I smell an elitist agenda across the region here. It very much looks like politicians in one of their SADC summits sat down to plot a strategy to shut media up. This Media tribunal thing is suddenly an appendage of adequate defamation and libel legislation all over the SADC region. Why? The media is being targeted by an elite leadership wanting to hide a lot of muck in maintaining clean images they patently do not possess and who are not prepared to be viewed as being the same as any other citizen, if not worse.

Nearly every SADC country now has a Media Tribunal or wants to have one. Looking over their populace, the politicians have created a them and us scenario with the journalists. They are trying to isolate journalists from the larger fabric of society when media is inherently intertwined with democracy. If they understood and genuinely took oath to protect the democracy they claim to be presiding over, politicians would be the first to demand that media be free. It is so as to ensure democracy.

When in Western style democracy it is said the media is the Fourth estate naive and parochial politicians identify this as some fourth wing of governance that should be targetted for reprimand as it is in competition with them. However, the Fourth estate arises only out of the understanding that for the Executive, Legislative and Judicial wings to carry out the functions of cross-checking each other as is necessary in this style of democracy, there has to be an atmosphere of freedom of speech. There is no fourth estate as a separate wing of governance. That’s why it is not headed by anyone unlike the other three wings!

Once the executive(or any other wing) start targetting media for punishment they are admitting that they dont want freedom of speech. When that is absent so is democracy. Politicians who genuinely believe in this type of democracy and want it to prevail would naturally want to protect a neccessary component of it. They would therefore ensure noone tampers with freedom of speech.

But here we are as journalists, isolated as enemies of the state and left to fight a philanthropic battle as if free speech was confined only to us. It is not, and all citizens and institutions should stand up to defend it otherwise politicians should openly state that they are abandoning Western style democracy for some other autocracy.Its good you have pointed out that the Zambian Constitution guarantees the protection of freedom of expression. However, throughout the region, there is always a tendency for politicians to get what they want constitution or nor constitution. To guard ourselves from self serving power-seekers, shouldn’t we perhaps have a Constitutional court that citizens can resort to if and when laws are passed (or action is done) that go against the grain of the constitution or is out Supreme Court relevant enough? Just as much as I suspect politicians plotted this attack on journalists I think we journalists in the region should plot a strategy to fight back. We should look at strengthening our own ethics monitoring systems and create ombudspeople with some esteem. We perhaps need to approach this regionally.

Gersh The anonymous entry above is by me Mwaba Phiri. I dont know why the blog makes me anonymous when I have clearly entered my names in the relevant blocks. Perhaps I am technologically challenged. Please delete my repetitions as the blog kept telling me I had entered an incorrect password when it nevertheless published Ha ha!